More judges will sit alone in hearings of the employment tribunal under reforms which came into force this week.
A practice direction on the composition of panels in both employment tribunals and employment appeal tribunals (EATs), written by the senior president of tribunals Sir Keith Lindblom, means fewer cases will be heard by a three-person panel comprising a judge and two lay members.
The direction, which came into force on 29 October, states that a judge will decide, “having regard to the interests of justice and the overriding objective”, whether an employment tribunal is to consist of a judge sitting alone, or a panel with a judge, an employee member, and an employer member.
Employment tribunals
Similarly, the document states that a case before the EAT should be heard before a judge sitting alone unless, “in the interests of justice and the overriding objective”, a judge decides the EAT should consist of a judge and lay members.
Non-legal members of tribunal panels are independently appointed to judicial office after consultation with organisations or associations representing of employers and employees.
They bring their experience of workplace norms, practices and challenges to help inform the legal analysis of the judge who chairs the panel. This helps to ensure that decisions are made with an understanding of the realities of the modern workplace and current industrial practices.
The “overriding objective” is to deal with cases fairly and justly, including where practicable: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility; avoiding delay; and saving expense.
Guidance issued by Judge Barry Clarke, president of the employment tribunals in England and Wales, and Judge Susan Walker, his counterpart in Scotland, said panel composition will vary from case to case: “They need not lead inevitably to a conclusion one way or the other, but are for the judge to weigh in the balance when deciding the composition which furthers the interests of justice and accords with the overriding objective.”
They added that relevant factors include: “On a practical level, the availability of members to sit on the case (which may correlate with the length of the hearing) and the risk of delay to the case if a full tribunal were to be empanelled.”
According to the latest Ministry of Justice figures, from April to June 2024, the number of open tribunal cases increased by 18%.
Law Society president Richard Atkinson told the Law Gazette: “We support improvements introduced which maximise the ability to utilise judicial resources. However, our primary concern is to make sure that an increasing employment tribunal backlog is tackled so that workers and employers can protect their rights and access justice.
“At its core, the Employment Rights Bill seeks to provide workers with new employment rights and remove barriers for enforcement. However, workers who are unable to access the employment tribunals in a timely manner will not be better off. If the outcomes intended by the government are to be achieved, investing in employment tribunals is paramount.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Employee relations opportunities on Personnel Today
Browse more Employee Relations jobs
